British Institute of International and Comparative Law

Land Law in India: With Special Reference to the Constitution

Author(s): R. S. Gae
Source: The International and Comparative Law Quarterly, Vol. 22, No. 2 (Apr., 1973), pp. 312-
328
Published by: Cambridge University Press on behalf of the British Institute of International and
Comparative Law
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LAND LAW IN INDIA: WITH SPECIAL REFERENCE TO
THE CONS'II'I'UTION

By
R. S. GAE*

THE truth of Justice Holmes' succinctobservationthat "The life of

the law has not been logic, it has been experience"1 is nowhere
more clearly illustrated than in the history of the constitutional
provisionsrelatingto land reformsin India. For an understanding
of the developmentsin land reformsit would be necessaryto trace
out, at least in outline,the social, economicand politicalbackground
in whichthese developmentstook place. However,before embarking
upon any discussionon the subject it may be pointed out that it
would not be possible in a brief study like the present one to go
into the details of the land legislationand land reforms in India.
The size of the country,the magnitudeof the problemsfacing it and
the varietyof the systemsof land tenuresprevailingin it make any
such discussionin this paperextremelydifficult,if not impossible. At
the same time certain broad principlesrelevant to the subject are
discussedbelow with special referenceto the Constitutionof India.
The magnitudeof the problemis evidentfrom the fact that even
Baden-Powell'sclassicalwork in three volumes on Land Systemsof
British India could not treat the problem of land tenures in full
detail. The problemhas become all the more complicatedin view
of the integrationof the formerIndian States2 within the Union of
IndiawhenIndiabecameindependentunderthe IndianIndependence
Act 1947.3 There are also a variety of local tenures peculiar to
particulardistrictsor even parts of the districts,enhancingthereby
the difficultiesregardingland tenuresprevailingin this country.

LAND REFORM LEGISLATION

By and largeland reformlegislationin Indiafollowsa generalpattern.

The backgroundfor this legislationis to be sought in the necessities
* Permanent Secretary, Ministry of Law and Justice, Government of India, New
Delhi.
1 Holmes, The Common Law, edited by Mark de Wolfe Howe (1963), p. 5.
2 These were
"Princely States" controlled by the British Government indirectly
through treaty arrangements with their princely sovereigns outside British India.
3 10 & 11 Geo. 6, c. 30.

312

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APRIL 11973] Land Law in India 313

of the times. Even before the attainmentof Independenceby India

on August 15, 1947, the IndianNationalCongress,the politicalparty
which came to power at the Centre as well as in the Provinces4
immediatelyafter Independenceand which has generallycontinued
to be in power, had been advocatingland reforms from the very
beginningby eliminatingthe feudal intermediariesand by bestowing
securityof tenureand economic stabilityon the peasantry.
The aims of land reformshave changedfrom time to time. One
of the persistentdemandsof the IndianNational Congressduringits
early years was the extension of the permanentsettlementof land
to non-settledareas in order that the rights of landlordsmight be
protected.It was only laterthat the contentof these demandschanged
to demandsfor protectingthe rightsof the agriculturallabourer,the
share cropperand the small tenant. It was by these new demands
that the characterof the organisationitself underwenta change.
The significantassociationof the politicalpartieswith the present
demand can be said to have commenced with the launching of
ChamparanSatyagraha(civildisobediencemovement)led by Mahatma
Gandhiin Bihar in early 1917 and Kaira (Gujarat)Satyagrahalater
in the same year.5 The KarachiResolution of the CongressParty,
adopted in March 1931, was the most comprehensivestatementof
the combined elements in the developmentof the programmeof
civil rights includingjusticiablerights,protectionfor minoritiesand
principlesof positivereform.6 Among the provisionsof the Karachi
Resolution were calls for land reform.7 Although certain specific
demandsin this regardcame to be made by other bodies like Kisan
Sabhas (peasant associations)with which the Congress was asso-
ciated, the CongressPartyin the beginningconfineditself to demand-
ing land reformsin generalterms. In its electionmanifestoof 1936,
it only pleaded for reform of the land tenure, revenue and rent
without spelling out what the nature of the reformsshould be.8 It
was only in the election manifesto of 1946 that the Congress
specificallyput forwardas its objectivethe removalof intermediaries
betweenthe peasantsand the State and the acquisitionof the rights
on paymentof equitablecompensationas the first step in the reform
of the land system.9 This was the beginningof a seriesof enactments
designedto alter the agrariansystemof the countrywhich had, in its
turn,constitutionalrepercussions.
4Called States after the commencement of the Constitution. States are constituent
units that make up the Union of India.
5 Malaviya, Land Reforms in India (1954), p. 3.
6 Some of them eventually became embodied in the Directive
Principles of State
Policy contained in Part IV of the Constitution of India.
7 Merillat, Land and the Constitution in India (1970), p. 39.
8 Malaviya, Land Reforms in India (1954), pp. 65, 66. 9 See Malaviya, ibid. p, 75.

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314 International and Comparative Law Quarterly [VOL. 22

In view of the vastnessof the countryand the problemsrelating

to land laws, an understandingof the natureof the legislationunder-
taken by governmentwould be facilitatedif the developmentsof the
agrarianreform laws relatingto one particularState in the Union
of India are taken into consideration. The State of Tamil Nadu 10
is chosenfor the purpose.

ZAMINDARS AND OTHER INTERMEDIARIES

Prior to the attainmentof Independencein 1947, the system of land
tenure was inextricablymixed up with the land revenue system.
There were various systems in existence, the most importantbeing
the zamindari,ryotwariand the mahalwari.ll In the State of Tamil
Nadu, the mahalwarisystem was not to be found. Barringcertain
special forms of tenure,the areas could be divided into zamindari12
areas and ryotwari 13 areas.
The basis of the zamindarisystem is the permanentsettlement
which was first introducedby Lord Cornwallisin Bengal by Regula-
tion 2 of 1793. The systemwas introducedin the MadrasPresidency
in the year 1802. The basis of this systemis that the State purported
to fix in perpetuity the dues from the land. In addition, the
zamindars,who were to a considerableextent revenuefarmers,were
declaredto be the ownersof the land.
The equation of the zamindarswith the English Lords of the
Manors was the source of much of the subsequentdifficulties. In
the permanentlysettled areas most of the zamindarsdid not concern
themselveswith the cultivationof the land but let out their rightsto
middlemen. A series of middlemencame and the process of sub-
infeudationcontinuedwith the rentalsbeing enhancedat every stage.
Becauseof this therewas little securityfor the actualcultivatorwhose
rents were raisedfrom time to time, though the revenuepayable by
the zamindarsto the Governmentremainedfixed. In political par-
lance the term " zamindar"came to mean a largelandownerholding
thousandsof acresof land and scoresof villagesand therebyconveyed
the image of a rich absentee landlord or oppressive local boss
extractingexorbitantrents from those who tilled the soil.'4
10 Till recently known as the State of Madras. For appraisal of the implementation
of land reforms in the said State, see Sonachalam, Land Reforms in Tamil Nadu
(1970).
11 See Kotovsky, Agrarian Reforms in India (1964), p. 2; see also Baden-Powell,
Land Revenue and Tenure in British India (1907), pp. 148, 149.
12 Zamindari is a
superior form of interest in land, specially in the northern parts
of India, the holder of which collected rents from those having subordinate
interests and paid land revenue to the Government.
13 Ryotwari is a system of land tenure in which land is held directly from the State
by the peasant proprietor.
14 Merillat, Land and the Constitution in India (1970), p. 20.

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APRIL 1973 ] Land Law in India 315

STEPS TOWARDS AGRARIAN LAND REFORM

The first step towards the agrarian land reform in the country was
the abolition of the zamindari system. As a precursor to this land
reform, rents fixed in the zamindari areas were reduced by statutes
to the level of the land revenue payable for the corresponding land
in the ryotwari areas. In the State of Tamil Nadu this was the aim
of the Madras Estates Land (Reduction of Rent) Act 1947,15 and
subsequently of the Madras Estates (Abolition and Conversion into
Ryotwari) Act 1948.16 The latter Act abolished zamindari estates
(permanent settlements), converted the occupancy tenants of the
zamindars into peasant proprietors under the ryotwari tenure, and
these proprietors paid their land revenue direct to the Government.
The zamindar's right to collect rent on behalf of government as well
as his rights to collect cesses and other dues were also abolished.
As regards the land under his own personal cultivation or other
private lands, the zamindar became a land-holder paying rent direct
to the Government like his former tenants. The compensation pro-
vided for the purpose was based upon a multiple of the annual net
income of such land, the multiple varying from 12-5 times the annual
net income in the case of estates whose annual net income exceeded
1,00,000 Rupees to 30 times such income in the case of estates whose
net income did not exceed 1,000 Rupees.7
The obligation to pay compensation for the above purpose arose
by virtue of the provisions contained in the Government of India
Act 1935 18 which was in force at the relevant time. This Act, as
originally enacted, not only provided for the payment of compensa-
tion for the compulsory acquisition of land and the like, but also
contained certain special safeguards with regard to the rights of
holders of zamindari and other estates.l9 Special provisions as
contained in section 299 (3) of the Government of India Act 1935
were considered necessary by the Joint Parliamentary Committee
which examined the Bill, on the ground that the rights of persons
like zamindars, jagirdars, inamdars, etc., were a form of "vested
interest " in India which required specific protection.20
After the attainment of independence it was felt that there was
no need for protection of any "vested interest" in land. A large
section of the public was apprehensive that the safeguards contained
in the Government of India Act 1935 might stand in the way of the

15 Madras Act 30 of 1947.

16 Madras Act 26 of 1948.
17 See Sonachalam, Land Reforms in Tamil Nadu (1971), p. 167.
18 26 Geo. 5, c. 2.
19 See s. 299 of the Government of India Act 1935.
20 See Seervai, Constitutional Law of India (1967), p. 512.

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316 International and Comparative Law Quarterly [VOL. 22

effective implementationof land reforms for the abolition of

zamindarisand the laws relatingtheretoenactedafter Independence,
when the said Act was still in force, but before the commencement
of the Constitutionof India on January26, 1950. This apprehension
was responsiblefor the insertionof clause (6) of Article 31 of the
Constitution.21

ARTICLE 31 OF THE CONSTITUTION

This brings us to Article 31 of the Constitutiondealing with the
compulsory acquisition of property. This was one of the most
controversialprovisions included in Part III of the Constitution
dealing with fundamental rights. The exceptional importance
attachedto this Article is demonstratedby the fact that not only its
adoptionin the originalform in the ConstituentAssembly but also
the first amendmentto the Article was moved in Parliamentby the
Prime Minister, Pandit JawaharlalNehru, himself. While moving
for the adoptionof this Article the PrimeMinisterexpresslyreferred
to the revolutionarynature of the land reforms which were then
contemplatedand added that the CongressParty had pledged itself
to the abolition of the feudal zamindarisystem and that it was
necessary to ensure its abolition rather than risk a reform which
would come into existencenot by law but by othermeans.22 Further
there were the long-standingpledges of those who had worked for
independenceto bring about a fairer distributionof wealth and the
need to use the machineryof the Stateto bringabout rapideconomic
developmentand land reform. The directive principles of State
policy, though not justiciablein the courts, includedgeneral expres-
sions of such aims to govern this action.23 Article 31 is relevant
for the purposeof the abovepledges.
The thinkingin the ruling party, the Indian National Congress,
was divided on the subject of payment of compensationfor com-
pulsory acquisitionof property. There were three main points of
view. One was in favour of payment of full compensationfor
acquisitionof property. The second favoured somethingless than
full payment, especially in major schemes of social reform. The
third wanted zamindarsto be dealt with on a special basis, favour-
ing payment of amounts much less than the market value of the
21 This clause is discussed on pp. 317-318, infra.
22 See Alexandrowicz, Constitutional Developments in India (1957), p. 81.
23
See, e.g., Art. 39: "The State shall, in particular, direct its policy towards
securing . . . (b) that the ownership and control of the material resources of the
community are so distributed as best to subserve the common good; (c) that
the operation of the economic system does not result in the concentration of
wealth and means of production to the common detriment." See also Merillat,
"Chief Justice S. R. Das: A Decade of Decisions on Right to Property"
(1959) 2 J.I.L.I. 184.

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APRIL 1973] Land Law in India 317

property acquired.24 Article 31, as enacted at the time of the

commencementof the Constitution,is a compromiseformula repre-
sentingdifferentshadesof viewsemergingin the ConstituentAssembly
on the subject.

LIMITATIONS ON LEGISLATIVE POWER REGARDING COMPULSORY

ACQUISITION OF PROPERTY

Article 31 (2),25as originallyenacted,imposed the followinglimita-

tions and restrictionson the legislative power of Parliamentor a
State legislature regarding compulsory acquisition of property,
namely: (a) that the compulsoryacquisitionof property must be
for a public purpose;(b) that such acquisitionmust be by authority
of law; (c) that such law must provide for compensation26 for the
propertyso acquired;and (d) that the law must eitherfix the amount
of the compensationor specify the principles on which, and the
mannerin which, the compensationis to be determinedand given.
A State law on the subject is requiredto be reservedfor the con-
siderationand assentof the President27 and is thus subjectto a veto
by the CentralGovernment. Furtherthe SupremeCourthas recently
held that Article 19 (1) (f)28 and Article 31 (2) are not mutually
exclusive.29 In view of this a law for compulsoryacquisition of
propertyis subject to one more limitation,namely, that such a law
must constitutereasonablerestrictionson the exercise of the right
conferredby Article 19 (1) (f) in the interestsof the generalpublic.30

EXCEPTIONS TO THE PROVISIONS CONTAINED IN ARTICLE 31 (2)

Existinglaws are not affectedby the provisionscontainedin Article

31 (2).31 Further while referringto the old policy of the Indian
National Congress regarding the abolition of zamindaris in the
country,the Prime Minister,Pandit JawaharlalNehru, pointed out
24 See Merillat, Land and the Constitution in India (1970), p. 56.
25 This Article is primarily based on the corresponding provisions of s. 299 (2)
of the Government of India Act 1935.
26 The Article used the word
"compensation" simpliciter without having any
qualifying word like "just" or "adequate." For the views expressed in the
Constituent Assembly in this behalf, see Granville Austin, The Indian Con-
stitution: Cornerstone of a Nation (1966), pp. 88, 91.
2; See Art. 31 (3).
28 Dealing with the right to acquire, hold and dispose of property.
29 Rustom Cavasjee Cooper v. Union of India (commonly known as the "Bank
Nationalisation Case ") (1970) 3 S.C.R. 530.
30 This has recently undergone a change in view of the Constitution (Twenty-fifth
Amendment) Act 1971 providing that nothing in Art. 19 (1) (f) shall affect the
law for compulsory acquisition of property referred to in Art. 31 (2).
31 See Art. 31 (5) (a). See also Art. 31 (5) (b).

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318 International and Comparative Law Quarterly [VOL. 22

that the pledge given for the purpose would be fully honoured.32
This has been duly carried out by enacting clauses (4) and (6) of
Article 31. Protection against challenge for contraventionof the
provisionsof Article 31 (2) has been given to any Bill pending at
the commencementof the Constitution33in a State legislature,if
such Bill has, after it is passedby the Statelegislature,been reserved
for the considerationof the President and received his assent as
contemplatedby clause (4) of Article 31. Further any State law
enactednot more than 18 monthsbefore the commencementof the
Constitutionhas also been saved from challenge for contravention
of the provisionsof Article 31 (2) or the provisionsof section299 (2)
of the Governmentof India Act 1935 if such law is submittedfor
certificationby the Presidentwithin three months from such com-
mencementand the Presidentcertifiesthe same under clause (6) of
the Article. State laws so saved mainly related to agrarianreform.
It is thus clear that while draftingArticle 31 (2) special care has
been taken to see that the variousZamindariAbolition Acts, which
had been passed by the State legislaturesor were pendingbefore the
legislaturesat the time of the commencementof the Constitution,
were not struckdown by the courts on the groundof inadequacyof
compensation. So far as the State of Madras is concerned, the
validity of the Madras Estates (Abolition and Conversion into
34
Ryotwari) Act 1948 has been upheld by the SupremeCourt in
view of the provisionsof Article 31 (6) of the Constitution.35Bills
on the subject were pendingbefore the legislaturesof some of the
Statesat the time of the commencementof the Constitution.It is in
view thereofthat clauses (4) and (6) of Article 31 referredto above
wereinsertedin the article.

THE FIRST AMENDMENT

Soon after the enactmentof the Constitution,several State govern-

ments carried out certain measures of agrarian reform or land
reform36 by enactinglegislationwhich may collectivelybe called the
ZamindariAbolitionActs. The validityof these Acts was challenged
32 Constituent Assembly Debates, Vol. IX (1949), p. 1193.
33 i.e., on Jan. 26, 1950.
34 Madras Act 26 of 1948.
35 Zamindar of Ettayapuram v. State of Madras (1954) S.C.R. 761.
36 " Land reform" is here taken to include the abolition of intermediaries, pro-
tection of tenants against eviction, control of land rents, consolidation of land
holding, prevention of fragmentation, transfer of ownership rights to tenants,
imposition of ceilings on the amount of land that can be held by one person or
family unit, distribution of surplus land among the landless and others and
settlement of landless agricultural workers. These are broadly the combination
of inter-related measures envisaged by the Second and Third Five-Year Plans.

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APRIL1973] Land Law in India 319

in the High Courtsin spite of the safeguardsprovidedby clauses (4)

and (6) of Article 31. The Patna High Court held that the Bihar
Land Reforms Act 195037was unconstitutional,not on the ground
of inadequacyof compensationas such challengewas barred,but on
the ground that it contravenedthe provisionsof Article 14 of the
Constitution.38On the other hand the Allahabadand the Nagpur
High Courtsupheld the validity of the correspondinglaws in Uttar
Pradeshand MadhyaPradeshrespectively. With a view to putting
an end to dilatorylitigation and to safeguardingfully various land
reformlaws against any attack for violation of fundamentalrights,
Parliament amended the Constitution by the Constitution (First
Amendment)Act 1951. The amendmentthus became necessaryto
achievethe objectiveof agrarianreform,havingregardto the directive
principlesof Statepolicy containedin Article 39, includedin Part IV
of the Constitution.
The First AmendmentAct inserted two new articles, namely,
Article 31A and Article 31B. Article 31A broadlyprovidesthat no
law providingfor the acquisitionby the State of any estate39or of
any rightsthereinshall be deemedto be void on the groundthat it is
inconsistentwith, or takes away or abridgesany of the rights con-
ferred by, any provisions of Part III of the Constitution. Thus,
while Article 31 (4) saved Bills pendingat the time of the enactment
of the Constitutionin the State legislatures(on receivingthe Presi-
dent's assent) from challenge on the ground that they contravened
the provisionsof Article 31 (2), the new Article 31A saved the laws
providingfor acquisitionof estatesfrom challengeon the groundof
violation of any of the fundamentalrights guaranteedby the said
Part. Article 31B validatedretrospectively13 Acts and Regulations
specifiedin the Ninth Scheduleto the Constitution,which, but for
such provision,would have been liable to be impugnedunderArticle
13 (2). Thus these Acts and Regulationscannot now be challenged
for violating the provisions of Article 14,40 Article 19 41 or Article
31 42 or any other provisionscontainedin Part III. The Acts and
Regulationsso validatedmainly related to legislationby the States
regardingagrarianreform. The main object of the AmendmentAct
was to keep the laws regardingland reforms43free from the rigours
37 Bihar Act 30 of 1950.
38 Kameshwar
Singh v. State of Bihar, I.L.R. (1951) Pat. 454 (F.B.).
39 The expression " estate " is defined in the Article.
40 Dealing with
equality before law and equal protection of laws.
41 Dealing with, inter alia, the right to acquire, hold and
dispose of property and
the right to carry on a business, subject to " reasonable restrictions."
42 Dealing with payment of
compensation for State acquisition, which must be for
a public purpose.
43 e.g., laws for the abolition of zamindaris,
jagirdaris and other forms of inter-
mediaries.

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320 International and Comparative Law Quarterly [VOL. 22

of fundamentalrightscontainedin the said Part as intendedby the

ConstituentAssembly.
The validityof the First AmendmentAct was challengedby the
zamindars before the Supreme Court in Sankari Prasad v. Union of
India.44 However, the challenge failed and the Court upheld the
validityof the said Act. As observedby SastriC.J., in anothercase,
"the zamindarslost the battle in the last round when this Court
of the AmendmentAct." 45
upheldthe constitutionality
Article 31A and Article 31B, as originallyenacted,were limited
in their scope.46 They were originallyenacted to validate the land
reform laws, particularly those providing for the abolition of
zamindaris,the acquisitionof estatesand the like. Thus the abolition
of zamindariscould be said to have been virtuallyeffected by the
Constitution(FirstAmendment)Act 1951.

THE FOURTH AMENDMENT

Soon after the commencementof the Constitutionthe currentof land

reformbeganto move in a differentdirection. The AgrarianReforms
Committeeof the Congress,appointedin furtheranceof the policy of
progressiveland reform adopted by the CongressParty, submitted
its Report in 1949, crystallisingthe views of the Party on various
aspects of land reform. The recommendationsmade by that Com-
mittee requiredto be duly implementedand steps in that direction
begangraduallyto be takenup in the matter.
The approachto nationalpolicy, as envisagedin the Five Year
Plans, also began to change. In the First and the SecondFive Year
Plans, the accent was unmistakablyon increased production and
improved social justice. These Plans were primarilyproduction-
orientedwith regardto the agriculturalsector and soughtan increase
in productionand diversificationof the produce.47It was, however,
gradually felt that the social objective of reducing disparities in
wealth called for impositionof ceilingson existingagriculturalhold-
ings and the provisionof securityto tenants.48The aim of improved
social justicewas to securea reductionin the disparitiesbetweenthe
lots of the rich and the poor, an end to exploitationof workerson
the land by landlords,a confirmationof holdings in the hands of
44 (1952) S.C.R. 89. In Golak Nath v. State of Punjab (1967) 2 S.C.R. 762, the
Supreme Court by a majority reversed its decision in Sankari Prasad's case,
but virtually upheld the validity of the First Amendment by applying the
doctrine of prospective overruling.
45 State of Bihar v. Kameshwar Singh (1952) S.C.R. 889 at 899.
46 These Articles, as they now stand, are in certain respects far reaching in effect.
47 See Appu, Ceiling on Agricultural Holdings (1971), p. 9.
48 See Planning Commission, The Second Five Year Plan (1956), p. 194.

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APRIL 1973] Land Law in India 321

those who actuallyworked the soil and the promise of more equal
status and opportunityfor those who lived on the land. Further,
with a view to attainingthe socialistpatternof society, as envisaged
by the Constitution,emphasiswas laid on the attainmentof positive
goals such as land reform,the raisingof living standards,the enlarge-
ment of opportunitiesfor all, the promotionin enterpriseamong the
disadvantagedclasses and the creation of a sense of partnership
amongall sectionsof the community.
In the meantimecertain decisions of the SupremeCourt49 on
propertyrights conferredby Articles 19 and 31 of the Constitution
resulted in a further amendmentof Articles 31 and 31A by the
Constitution(Fourth Amendment)Act 1955. These amendments
sought to make it clear that the courts should not go into the
questionof adequacyof compensationfor compulsoryacquisitionof
property50 and furtherto lay down what constitutes" compulsory
acquisitionof property" (referringto State acquisitiononly),51so as
to attract the provisions of Article 31 (2) relating to payment of
compensationfor such acquisition. The Amendment Act made
furtheralterationsin Article 31A, wherebycertain types of laws 52
have been protected against any attack based on the fundamental
rights guaranteed by Articles 14, 19 and 31.53 It added seven more
Acts in the Ninth Scheduleto the Constitution,makingthem immune
from challengefor violatingany of the provisionscontainedin Part
III and gave retrospectiveeffect to the above amendments.
In the State of Madras, as it then was, the demand for the
regulationof tenures and the restrictionon the rights of the land-
lords led to the passingof the MadrasCultivatingTenantsProtection
Act 195554 and the Madras CultivatingTenants (Paymentof Fair
Rent) Act 1956.55 The formerAct, whichwas an emergencymeasure
aimed at preventingunjust eviction of cultivatingtenants,sought to
49 See State of West Bengal v. Bela Banerjee (1954) S.C.R. 558: State of West
Bengal v. Subodh Gopal Bose (1954) S.C.R. 587; Dwarkadas Srinivas v.
Sholapur Spinning and Weaving Co. Ltd. (1954) S.C.R. 674 and Saghir Ahmad
v. State of Uttar Pradesh (1955) 1 S.C.R. 707. In the first case the Supreme
Court construed the expression "compensation" occurring in Art. 31 (2) as
just equivalent or full indemnification of what the owner has been deprived.
This ran counter to the intent of the framers of the Constitution in the matter.
For a full discussion on the subject, see Gae, Bank Nationalisation Case and the
Constitution (N. M. Tripathi Private Ltd., 1971), pp. 108-113.
50 See Art. 31 (2).
51 See Art. 31 (2A).
52 Acquisition of an estate or modification of rights therein,
temporary taking over
of the management of any property, amalgamation of corporations, modification
of rights of managing agents and other managerial officers in a corporation and
modification of rights arising from leases for minerals and mineral oils.
53 And not against all the provisions of Part III, as was done by the Constitution
(First Amendment) Act 1951.
54 Madras Act 25 of 1955.
55 Madras Act 24 of 1956.

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322 International and Comparative Law Quarterly LVOL.22

protectthe rightsof cultivatingtenantswho were in possessionas on

December1, 1953, for a period extendingup to eight years pending
the enactmentof fresh agrarianlegislation. In addition,the former
Act also lays down conditionsunder which landlordscould reclaim
the land. Land could be reclaimedfor personal cultivationunder
certain circumstances,but if the land so reclaimedis not used for
personal cultivation, the land would revert to the former tenant.
The latter Act, as its name implies,sought to limit the rent recover-
able by landlords. A fair rent was determinedfor land depending
upon its nature and the intensity of irrigation. The rents were to
be in force for a period of five years and allowancewas made for
the variationof the rent in the event of the productionbeing affected
by seasonal vagaries. This, in its turn, was followed by legislation
intended to impose a ceiling on land holdings. This was done by
the MadrasLand Reforms(Fixationof Ceilingon Land) Act 1961.56
Ceilingsbased upon the concept of a standardacre are worked out
and the maximumarea which could be owned by a family is fixed
at 30 standardacres57for a family of not more than five members
and for familiesof more than five, an additionof five standardacres
for every memberwas fixed. Certain exemptionshave been given
to cover cases of plantationsand the like. Land over the ceiling
limit is to vest in the governmentfor the benefit of those without
land and for otherpublicpurposes.
Legislationon the above patternproceededon the basis that it
was covered by Article 31A on the ground that such legislation
dealt with " estates." 58

THE SEVENTEENTH AMENDMENT

The KeralaAgrarianRelationsAct 196159was struck down by the

SupremeCourt in its applicationto ryotwarilands in the erstwhile
Stateof Madras. It was held that the lands held by ryotwaritenants
were not "estates" within the meaningof Article 31A (2) (a) and
hence the said Act was not protectedfrom attack under Articles 14,
19 and 31 of the Constitution.60The Court also struck down the
MadrasLand Reforms (Fixationof Ceilingon Land) Act 196161on
the grounds(a) that the provisionsof section 5 (1) of the Act laying
down the ceiling area resultedin discriminationbetween persons in
the same circumstancesand thus violated Article 14, (b) that the
56 Madras Act 58 of 1961.
57 Since reduced to 15 standard acres.
58 " Estate " is defined by Art. 31A (2) (a) of the Constitution.
59 Kerala Act 4 of 1961.
60 Karimbil Kunhikoman v. State of Kerala (1962) Supp. I S.C.R. 829.
61 Madras Act 58 of 1961.

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APRIL1973] Land Law in India 323

provisions of section 50, read with Schedule III with respect to

compensation, were also discriminatory and thus violated the said
Article and (c) that as these two sections were basic provisions of
the Act, the whole Act must be struck down as unconstitutional.62
Several other state Acts relating to land reform were also struck
down by the courts on similar grounds. This led to the enactment
of the Constitution (Seventeenth Amendment) Act 1964.
The amendment to Article 31A, consequent on the judicial pro-
nouncements referred to above, enlarged the definition of "estate"
occurring in the article, so as to include any land held under
ryotwari settlement as well as other lands in respect of which pro-
visions are normally made in land reform enactments. It further
made a special provision regarding compensation payable for
acquisition of land in certain cases. When land within the ceiling
limit fixed by local law for the time being in force and comprised in
an estate is held by a person under his personal cultivation, acquisi-
tion of such land can only be made by paying compensation at a
rate not less than its market value. Thus Parliament sought to save
the small peasant proprietors or owner-cultivators holding land
(forming part of an estate) within the ceiling by guaranteeing them
the market value for their holding. Simultaneously the Amendment
Act inserted 44 more Acts relating to land reform (including the
Madras Acts referred to above) in the Ninth Schedule to the Con-
stitution in order to remove any uncertainty or doubt that might
arise with regard to their validity. The effect of such inclusion is
to bring these Acts within the protection of Article 31B. Conse-
quently none of these Acts, nor any provisions thereof, can be
challenged as violating the provisions of Part III including Articles
14, 19 and 31 of the Constitution.
It is now well accepted that the protection of Article 31A (1) (a)
regarding acquisition of an estate extends only to legislation con-
cerned with agrarian reform, i.e., the reform pertaining to agriculture.
The implication of the expression "agrarian reform" is necessarily
not precise, but it has been widely construed by the Supreme Court,
so as to include provisions made for the development of the rural
economy. However, a law regarding industrial development is not
protected by the said Article.63
The validity of the Constitution (Seventeenth Amendment) Act
1964 was challenged in Sajjan Singh v. State of Rajasthan.6' The
Supreme Court, following its earlier decision in Sankari Prasad v.
62 Krishnasami Naidu v. State of Madras (1964) 7 S.C.R. 82 at 87 and 88.
63 For further discussion on the subject, see Gae, Bank Nationalisation Case and
the Constitution (N. M. Tripathi Private Ltd., 1971), pp. 136, 137.
64
(1965) 1 S.C.R. 933.

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324 International and Comparative Law Quarterly [VOL. 22

Union of India,65held that the word "law" in Article 13 (2) does

not include a law passed by Parliamentby virtue of its constituent
power taking away or abridgingthe fundamentalrights guaranteed
by Part III of the Constitutionand hence the impugned Act is
constitutionallyvalid.66

GOLAK NATH DECISION

The validity of the First, Fourth and SeventeenthAmendmentActs

relatingto " rightto property"was challengedin the SupremeCourt
in Golak Nath v. State of Punjab.67 The matter was considered by
the Full Court consistingof 11 judges and the far-reachingdecision
of the Court was given on February27, 1967. The Court held 68
that the expression"law" as definedby Article 13 (3) includesnot
only the law madeby Parliamentin exerciseof its ordinarylegislative
power but also an amendmentof the Constitutionmade in exercise
of its constituentpowerand hence such an amendmentwould be void
underArticle 13 (2) if it takes away or abridgesthe rightsconferred
by Part III of the Constitution. The Court accordinglyheld that
the First, Fourth and SeventeenthAmendmentsabridge the scope
of the fundamentalrightsand are thereforevoid underArticle 13 (2).
However, on the applicationof the American doctrine of "pros-
pective overruling"69 the decision of the Court will have only
prospectiveoperationand hence the aforesaidthreeAmendmentActs
will continue to be valid. Thus the decisions in Sankari Prasad's
Case 70 and Sajjan Singh's Case 71 were virtually overruled.
The effect of the majorityjudgmentin Golak Nath's Case72 is
that the First,Fourthand SeventeenthAmendmentActs, laws enacted
by Parliamentor State legislaturesin pursuancethereof and any
action taken in pursuanceof laws so enacted,are valid and continue
to be valid, even thoughthey take away or abridgeany of the rights
conferredby Part III of the Constitution. As from February27,
1967, Parliamentis not competentto amend the Constitutionor to
enact any law in pursuanceof such amendment,if the amendment
65 (1952) S.C.R. 89.
66 The decision was by a majority of three to two.
67 (1967) 2 S.C.R. 762.
68 The decision was by a majority of six to five.
69 This doctrine was applied by five judges constituting the majority, whereas the
sixth judge relied on the doctrine of "acquiescence" in relation to the First
and Fourth Amendments. See (1967) 2 S.C.R. 762 at 813 and 902. It is
submitted that the Golak Nath decision requires reconsideration in several
respects. For a critique on the said decision, see Gae, op cit. supra, pp. 140-144.
The Golak Nath decision is now being reconsidered by a Constitution Bench of
the Supreme Court consisting of 13 judges.
70 (1952) S.C.R. 89.
71 (1965) 1 S.C.R. 933. 72 (1967) 2 S.C.R. 762.

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APRIL1973] Land Law in India 325

takes away or abridgesany of the fundamentalrights conferredby

PartIII of the Constitution.

TWENTY-FIFTH AMENDMENT
The last amendmentof the Constitutionrelevantfor the purposeof
land law and land reformis the Constitution(Twenty-fifthAmend-
ment) Act 1971. In the Bank Nationalisation Case the Supreme
Court held that the expression"compensation" in Article 31 (2)
after the Constitution(Fourth Amendment)Act 1954 continued to
have the same meaningas it had before such amendment,namely,
just equivalentor full indemnificationof what the owner has been
deprivedof.73 This virtuallymeans that the adequacyof compensa-
tion and the principleslaid down by the legislaturefor determining
the amountof compensationare justiciablein spite of Article 31 (2)
as amended. This caused great difficultyin fulfillingthe programme
of socialist pattern of society as contemplatedby the Constitution,
resultingin the enactmentof the Constitution(Twenty-fifth)Amend-
ment Act 1971 to overcome the difficulty caused in the matter.
Article 31 (2) has been further amended by substitutingthe word
" amount" in place of the word " compensation " and by providing
that such amount may be given otherwisethan in cash. Further,a
new Article, namely, Article 31C, has been inserted,providingthat
if any law is passed to give effect to the directiveprinciplesof State
policy containedin clauses (b) and (c) of Article 39 74and contains
a declarationto that effect, such law shall not be deemedto be void
on the ground that it takes away or abridges any of the rights
conferredby Articles 14, 19 or 31 and shall not be questionedin any
court on the groundthat it does not give effectto such policy. Thus
a law giving effect to directiveprinciplesspecifiedin clauses (b) and
(c) of Article 39 is saved from challengefor violating fundamental
rightsguaranteedby Articles14, 19 and 31, and such a law containing
the declarationas contemplatedabove is also immunefrom judicial
review by the courts. Laws regardingland reform can be brought
withinthe purviewof Article31C.
Land reformshave recentlytaken another shape as a result of
the excellent work done by Acharya Vinobha Bhave (a disciple of
Mahatma Gandhi) along with his own disciples. Legislation has
been passed by severalstates to facilitatethe voluntarysurrenderof
surplusland held by a personand to donate the same to the village
communityfor its distributionto the landless. Since these measures
are primarilyvoluntaryin nature,it would be out of place to refer
to the samein the presentpaper.
73 (1970) 3 S.C.R. 530 at 596. 74 Set out in n. 23, suipra.

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326 International and Comparative Law Quarterly [VOL. 22

EPILOGUE AND CONCLUSIONS

It is clear that the trend of land law and land reform in India, which
initially commenced with the abolition of zamindari and the per-
manent settlement, subsequently extended in the first place to security
of tenure to the tenant and thereafter to the fixation of limits on the
rent payable by him. This virtually culminated in the fixation of
ceilings on land-holding by a family. Lands above the ceiling were
acquired and distributed amongst the landless and other weaker
sections of the community. At every stage of the proposed legisla-
tion regarding land reform, constitutional difficulties came in the way
of its implementation and had to be surmounted by the constitutional
amendments, namely, the First, Fourth, Seventeenth and Twenty-fifth
Amendments referred to above.
The foregoing account, though necessarily concise, depicts con-
siderable legislative activity in the field of land law and land reform,
irrespective of other regulatory legislative measures taken in that
field. To some extent this represents what may perhaps be said to
be a universal trend in countries where private ownership of land
and private enterprise in agriculture are permitted.
Two broad trends emerge from the preceding discussion. In the
last century an eminent jurist summed up his narrative of legal
developments over the years by observing that "... we may say
that the movement of the progressive societies has hitherto been a
movement from status to contract." 75 A reversal of this trend is
now clearly discernible. The period of an agricultural lease, the
circumstances under which it may be determined, the rent payable
and several incidents of tenancy of agricultural land are no longer
determined by the volition of the parties or by contract. The
individual is not even free to determine for himself the amount of
agricultural land which he can acquire by purchase or lease. A law
relating to ceilings on holdings, usually fixed with reference to a
family as distinct from an individual, is an essential feature of land
reform legislation. Every one of these points, being initially matters
falling within the domain of contract, has now passed out of that
realm into one regulated or rather fixed by law and has thus become
a part of the realm of status.76
The other and perhaps even more significant development is the
steady diminution or erosion of the importance of the concept of the
75 Maine, Ancient Law, 10th ed. (1885), p. 170.
76 Status is a condition of membership of a group of which powers and duties are
exclusively determined by law and not by agreement between the parties con-
cerned. It has been held that the legal position of a Government servant is
more one of status than of contract. See Roshan Lal v. Union of India (1968)
1 S.C.R. 185 at 195.

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APRIL1973] Land Law in India 327

"right to property,"particularlyin land with one significantexcep-

tion. The Constitutionof India gives no significanceto views like
those of Proudhonthat "property is theft,"7 nor does it like the
U.S. Constitutionequate propertywith life and liberty.78 While the
"right to property" is given a place among the fundamentalrights,
it comes a long way after libertyin the hierarchyof human rights.79
It would be noticed that it was with some hesitationand reserva-
tion that the concept of " right to property" found a place in Part
III of the Constitutiondealingwith fundamentalrights80and there-
after it was found necessaryon more than one occasionto modify it
by constitutionalamendments,as it was felt that the provisionsof
the said part came in the way of implementing the directive
principlesof State policy contained in Part IV, which have been
declared to be fundamentalin the governanceof the country, the
principlesof which the State is requiredto apply in makinglaws.81
One type of property,however, has been expressly safeguarded
by the second proviso to Article 31A (1) of the Constitution. This
providesthat when a State acquiresany estate and where any land
comprisedthereinis held by a person underhis personalcultivation
and is within the ceiling limit applicableto him under any law for
the time being in force, the law for the acquisitionof such land
shall not be effectiveunless it providesfor paymentof compensation
at a rate not less than the market value thereof.82 To this limited
extent only, the concept of " just compensation"found in the Fifth
Amendmentof the U.S. Constitutionfinds a place in India. Thus it
appearsthat basicallythe Constitutionof India, while not denyinga
place to the concept of the " right to property" in land, has given
it a secondaryplace, emphasisingat the same time that the " rightto
property" is only a means to an end and is subservientto the social
good whichit is designedto serve.
One of India's Constitutionmakers, a distinguishedlawyer,83
drew attentionto the fact that this was the basis upon which the
"right to property" was recognisedin ancient India. According
to him:
77 This was with reference to the exploitation of the labour of others in the form
of rent.
78 The Fifth Amendment to the U.S. Constitution provides that a person shall not
"be deprived of life, liberty or property, without due process of law." Similarly,
the Fourteenth Amendment provides that a State shall not "deprive any
person of life, liberty or property, without due process of law."
79 Called in the Constitution of India " fundamental rights."
80 Some jurists even doubted the wisdom of
including "right to property" as a
fundamental right in Part III of the Constitution.
81 Art. 37.
82 This proviso is not affected by the Constitution (Twenty-fifth) Amendment Act
1971.
83 Sir Alladi Krishnaswami Ayyar.

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328 International and Comparative Law Quarterly [VOL. 22

Our ancients never regarded the institution of property as an end in itself.

Property exists for Dharma. Dharma and the duty which the individual
owes to the society form the whole basis of our social framework. Dharma
is the law of social well-being and varies from Yuga to Yuga.... The sole
end of property is Yagna and to serve a social purpose, an idea which
forms the essential note of Mahatma Gandhi's life and teachings.84
It is this balance between the rights of an individual and the
rights of the society that the Constitution of India has tried to
preserve with regard to one of the most important forms of property,
namely, property in land. While guaranteeing full indemnification
and payment of the market value to the actual tiller of the soil
for the acquisition of land within the ceiling limits, it ensures that
property is subject to acquisition on payment of compensation and
regulation for the better employment and equitable distribution of the
material resources of the community with a view to preventing con-
centration of wealth in the hands of a few-unhampered by considera-
tions of adequacy of compensation for acquisition and justiciability of
such compensation.

84 Constituent Assembly Debates, Vol. IX (1949), p. 1274.

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